Fenske v. Kluender

Lyon, J. The original action of Kluender v. City of Milwaukee and Mrs. Fenske was brought in the circuit court to [607] enforce an alleged resulting trust in the lot condemned by the city, and resulted in the establishment of such trust in fayor of the plaintiffs. It was, therefore, an action in equity. Had the present plaintiff been a party to that action, this would be an action to review and annul the judgment therein. A bill of review is in the nature of a writ of error, and its object is to procure an examination and alteration or reversal of a decree made upon a former bill. Story’s Eq. PL § 403. If the plaintiff can maintain an action of this nature at all (a proposition not here decided) such action must be governed by the same rules applicable to bills of review. One of these rules is that the bill must always be filed in the court which rendered the decree or judgment sought to be reviewed. Another is that leave to file the bill must first be obtained from that court upon petition supported by affidavit. Parish v. Marvin, 15 Wis. 247, and cases there cited. In this case there has been no compliance with either of the above rules. No leave to commence the action has been obtained, and it was not brought in the court which rendered the judgment sought to be reviewed. Hence the county court had no jurisdiction to entertain the action. It was stated on the argument that the county court sustained the demurrers on this ground. We are satT isfied that the court ruled correctly. It was claimed in argument that the complaint shows on its face that the plaintiff was guilty of such laches in asserting his claim to the lot, and the money awarded therefor, that he is now estopped from asserting it. There is much force in this argument. By his own showing the plaintiff obtained an absolute title to the lot in 1876, by good and sufficient conveyances, and on the faith thereof expended several thousands of dollars in improving the property. The only fact that he alleges tending to raise doubt in his mind of the validity of his title is that the conveyances were placed in the hands of his wife’s attorney, and he under [608] stood from such attorney that they had no legal effect. He does not aver that he retained an attorney to advise him on the subject, or that his wife’s attorney ever examined the conveyances, or was ever requested to do so, or was advised of the facts upon which the plaintiff’s claim of title rested. It is incredible that the mere casual suggestion of an attorney, throwing doubt upon his title, made under-such circumstances, could have led the defendant to believe that he had no title to the lot. Especially is this so, when it is considered that up to that time he relied implicitly upon the validity of his title, and expended large sums of money in improvements upon the faith of it. He must have known of the condemnation proceedings in 1880, and of the commencement and prosecution of the action by the Kluenders — mother and son —against his wife, and yet he remained passive, probably until after final judgment had been rendered in their favor in that action. True, the complaint alleges that he gave notice to the city of his claim, and also that he desired and applied to be made a party to that action. But vrhen he gave such notice, or when he so applied, or to whom, the complaint does not inform us. It does inform us, however, that he ascertained in June, 1882, that the conveyances of the lot to him were valid, yet he did not record those conveyances until five months later. We do not say that the allegations of this complaint convict the plaintiff of such laches as would defeat an action properly brought to recover the condemnation moneys, but we suggest that, if another action be brought in the circuit court, the facts excusing his delay should be stated with more definiteness and certainty than they are in the present complaint. Were we to take cognizance of all the statements of fact made by the learned counsel in their arguments, we should be compelled, upon well-settled rules of law, to hold that the plaintiff is estopped by his laches to maintain an action [609] like tbis. "Were we to take cognizance. of the facts which have come to our knowledge on the appeals in the original action, we are not sure but we should be compelled to the same conclusion; but, with the foregoing observations, which it was deemed proper to make, we leave the question of laches undetermined, and decide these appeals on the grounds first above stated. By the Court.— The orders of the county court are affirmed. .